Terms of Service

These Terms of Service (“Terms”) govern your access to and use of the services, including our various websites, SMS, phone calls, APIs, email notifications, and applications, (the “Services” or “Call in the Night”), and any information, text, graphics, photos, audio recordings or other materials uploaded, downloaded or appearing on the Services (collectively referred to as "Content"). Your access to and use of the Services are conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services, you become a subscriber to the Service (a “Subscriber”), and you agree to be bound by these Terms. If you do not agree to the terms, please do not register for the Call in the Night service.

1. Basic Terms

You are responsible for your use of the Services, for any Content you post to the Services, and for any consequences thereof. The Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites. You should only provide Content that you are comfortable sharing with others under these Terms.

Your participation in Call in the Night is for your sole, personal use. You may not authorize others to use your account, and you may not assign or otherwise transfer your account to any other person or entity. Only one account per person is allowed.

You may use the Services only if you can form a binding contract with Call in the Night and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. If you are accepting these Terms and using the Services on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.

The Services that Call in the Night provides are always evolving and the form and nature of the Services that Call in the Night provides may change from time to time without prior notice to you. In addition, Call in the Night may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally and may not be able to provide you with prior notice. We also retain the right to create limits on use and storage at our sole discretion at any time without prior notice to you.

Minors may not become subscribers. By becoming a Subscriber, you represent and warrant that you are at least 18 years old.

2. Privacy

Any information that you provide to Call in the Night is subject to our Privacy Policy, which governs our collection and use of your information. You understand that through your use of the Services you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing and use by Call in the Night. As part of providing you the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your Call in the Night account, which you may not be able to opt-out from receiving.

3. Content on the Services

All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. We may not monitor or control the Content posted via the Services and, we cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk.

WARNING: PLEASE READ

It is possible that other Call in the Night Subscribers or users (including unauthorized users) may post or transmit offensive, harassing or obscene Content via the Call in the Night Services and that you may be involuntarily exposed to such offensive, harassing and obscene materials. It also is possible for others to obtain personal information about you due to your use of the Service, and that the recipient may use such information to harass or injure you. Call in the Night is not responsible for the use of any personal information that you may choose to disclose on the Service. Please carefully select the type of information that you post on the Call in the Night service or release to others.

4. On-Phone Conduct

As a Subscriber, you agree that:

You will not post on the Call in the Night service, or transmit to other Call in the Night Users or Employees, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity).

You will not engage in advertising to, or solicitation of, other subscribers to buy or sell any products or services through the Service.

5. Indemnity by Subscriber

You will defend, indemnify, and hold harmless Call in the Night, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of your use of the Call in the Night service, including any breach by you of these Terms.

6. Restrictions on Content and Use of the Services

We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Services or endorse any opinions expressed via the Services. You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will Call in the Night be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services or broadcast elsewhere.

We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to suspend or terminate users without liability to you. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Call in the Night, its users and the public.

The Content are the property of Call in the Night and its subsidiaries, affiliates, assigns, or licensors. The Content is protected, without limitation, pursuant to United States and international copyright, trademark, and other applicable laws, and the unauthorized copying, displaying, or other use of any of the Content may violate one or more of these laws.

If, at any time you post any Content to the Services, you automatically grant Call in the Night a royalty-free, universal, perpetual, irrevocable, non-exclusive right (including any moral rights) and license to use, reproduce, modify, adapt, publish, retransmit, translate, create derivative works from, distribute, communicate to the public, publicly perform, or display such content (in whole or in part), and/or to incorporate it in other works in any form, media, or technology now known or later developed, for so long as any rights exist in such content. You also warrant that the holder of any rights, including moral rights in such content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license set forth in this agreement. You also permit any other user to access, display, view, store, and reproduce such content for such user's personal use.

You may not do any of the following while accessing or using the Services: (i) access, tamper with, or use non-public areas of the Services, Call in the Night's computer systems, or the technical delivery systems of Call in the Night’s providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Call in the Night (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with Call in the Night (NOTE: crawling the Services is permissible if done in accordance with the provisions of the robots.txt file, however, scraping the Services without the prior consent of Call in the Night is expressly prohibited); (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; or (v) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services.

7. Telephone Recording

You understand that through your use of the Services you consent to the recording of any Content and other communications, including telephone conversations, made through the Services.

8. Copyright Policy

Call in the Night respects the intellectual property rights of others and expects users of the Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your Content has been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

9. Prohibited Activities

You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials that you upload, share, publish or display or email or otherwise use via our services. The following are examples of the kind of content and/or use that is illegal or prohibited. We reserve the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this section, including without limitation, suspending or terminating your account and reporting you to the law enforcement authorities. You agree to not use our services to:

upload or transmit any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, nude, partially nude, or sexually suggestive, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying our services, or which may expose us or our users to any harm or liability of any type

create a username for the purpose of preventing others from using that handle, sell or buy usernames, or impersonate another person or entity in a manner that is intended to or does mislead, confuse or deceive others, or falsely state or otherwise misrepresent your affiliation with a person or entity

interfere with or disrupt our services or servers or networks connected to our services, or disobey any requirements, procedures, policies or regulations of networks connected to our services

violate any applicable local, state, national or international law, or any regulations having the force of law

solicit personal information from anyone under the age of 18

promote suicide, self-harm, self-mutilation or eating disorders. It may be acceptable to share information about self-harm if used in the context of providing support to other users

harvest or collect email addresses or other contact information of other users from our services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications

advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized by us

further or promote any criminal activity or enterprise or provide instructional information about illegal activities

share content (text, image, audio) that implicitly or explicitly associates the user with, or represents promotion of, celebration with violent extremist ideologies, groups, and tactics. We acknowledge that there is no universal definition of terrorism. For the purposes of our service, we will consider terrorist content to be material posted by, or in, support of organizations included on the Consolidated United Nations Security Council Sanctions List, in addition to country/region-specific sanctions list

obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through our services.

In connection with your use of our services you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by us from accessing our services (including by blocking your IP address or your associated phone number), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address).

10. Reincarnation

By using the Services you waive the right to reincarnate without the express written permission of Call in the Night. Reincarnation in any form without our permission could lead us to suspend or terminate your account.

11. Ending These Terms

The Terms will continue to apply until terminated by either you or Call in the Night as follows.

You may end your legal agreement with Call in the Night at any time for any reason by deactivating your account and discontinuing your use of the Services.

We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms, (ii) you create risk or possible legal exposure for us; or (iii) our provision of the Services to you is no longer commercially viable. We will make reasonable efforts to notify you by phone number with your account or the next time you attempt to access your account.

In all such cases, the Terms shall terminate, including, without limitation, your license to use the Services, except that the following sections shall continue to apply: 3, 5, 6, 10, 11, and 12.

Nothing in this section shall affect Call in the Night’s rights to change, limit or stop the provision of the Services without prior notice, as provided above in section 1.

12. Disclaimers and Limitations of Liability

Please read this section carefully since it limits the liability of Call in the Night and its parents, subsidiaries, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (collectively, the “Call in the Night Entities”). Each of the subsections below only applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties or the limitation of liability in contracts, and as a result the contents of this section may not apply to you. Nothing in this section is intended to limit any rights you may have which may not be lawfully limited.

A. The Services are Available "AS-IS"

Your access to and use of the Services or any Content are at your own risk. You understand and agree that the Services are provided to you on an "AS IS" and "AS AVAILABLE" basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, THE CALL IN THE NIGHT ENTITIES DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

The Call in the Night Entities make no warranty and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or any Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; and (iv) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from the Call in the Night Entities or through the Services, will create any warranty not expressly made herein.

B. Links

The Services may contain links to third-party websites or resources. You acknowledge and agree that the Call in the Night Entities are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the Call in the Night Entities of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

C. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CALL IN THE NIGHT ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE CALL IN THE NIGHT ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID CALL IN THE NIGHT, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE CALL IN THE NIGHT ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

13. General Terms

A. Waiver and Severability

The failure of Call in the Night to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.

B. Controlling Law and Jurisdiction

These Terms and any action related thereto will be governed by the laws of the State of California without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in the federal or state courts located in San Francisco County, California, United States, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.

If you are a federal, state, or local government entity in the United States using the Services in your official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you. For such U.S. federal government entities, these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of California (excluding choice of law).

C. Entire Agreement

These Terms and our Privacy Policy are the entire and exclusive agreement between Call in the Night and you regarding the Services (excluding any services for which you have a separate agreement with Call in the Night that is explicitly in addition or in place of these Terms), and these Terms supersede and replace any prior agreements between Call in the Night and you regarding the Services.

The Terms are subject to change by Call in the Night at any time, effective without notice. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.

Effective: January 31, 2019

Privacy Policy

This Privacy Policy describes how and when Call in the Night collects, uses and shares your information when you use our Services. Call in the Night receives your information through our various websites, SMS, phone calls, APIs, email notifications, and applications (the "Services" or "Call in the Night"). For example, you send us information when you use the Call in the Night website, communicate with Call in the Night via SMS, or receive a phone call from Call in the Night. When using any of our Services you consent to the collection, transfer, manipulation, storage, disclosure and other uses of your information as described in this Privacy Policy. Irrespective of which country you reside in or supply information from, you authorize Call in the Night to use your information in the United States and any other country where Call in the Night operates.

1. Information Collection and Use

Information Collected Upon Registration: When you create or reconfigure a Call in the Night account, you provide some personal information, such as your phone number, gender, age, and location. None of this information is listed publicly on our Services.

Phone Calls: Call in the Night is a project designed to document the nighttime experience using recorded conversations from phone calls. The recordings of these calls will be made public. The conversations may be shared, remixed, and reused, for example, to make a weekly podcast. The conversations are anonymous. We will never make the phone number or identity of a participant publicly available.

Cookies: Like many websites, we use "cookie" technology to collect additional website usage data and to improve our Services, but we do not require cookies for many parts of our Services such as listening to recordings of publicly available phone conversations. A cookie is a small data file that is transferred to your computer's hard disk. Call in the Night may use both session cookies and persistent cookies to better understand how you interact with our Services, to monitor aggregate usage by our users and web traffic routing on our Services, and to customize and improve our Services. Most Internet browsers automatically accept cookies. You can instruct your browser, by changing its settings, to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit. However, some Services may not function properly if you disable cookies.

Log Data: Our servers automatically record information ("Log Data") created by your use of the Services. Log Data may include information such as your IP address, browser type, operating system, the referring web page, pages visited, location, your mobile carrier, device and application IDs, search terms, and cookie information. We receive Log Data when you interact with our Services, for example, when you visit our websites or sign into our Services. Call in the Night uses Log Data to provide our Services and to measure, customize, and improve them.

Third-Party Service Providers: Call in the Night uses a variety of third-party services to help provide our Services, such as hosting our various blogs and wikis, and to help us understand the use of our Services, such as Google Analytics. These third-party service providers may collect information sent by your browser as part of a web page request, such as cookies or your IP address.

2. Information Sharing and Disclosure

Non-Private or Non-Personal Information: We may share or disclose your non-private, aggregated or otherwise non-personal information, such as the phone conversations recorded when you interact with the Service.

Law and Harm: Notwithstanding anything to the contrary in this Policy, we may preserve or disclose your information if we believe that it is reasonably necessary to comply with a law, regulation or legal request; to protect the safety of any person; to address fraud, security or technical issues; or to protect Call in the Night's rights or property. However, nothing in this Privacy Policy is intended to limit any legal defenses or objections that you may have to a third party’s, including a government’s, request to disclose your information.

Our Policy Towards Children

Our Services are not directed to persons under 18. If you become aware that your child has provided us with personal information without your consent, please contact us at max@callinthenight.com. We do not knowingly collect personal information from children under 18. If we become aware that a child under 18 has provided us with personal information, we take steps to remove such information and terminate the child's account.

Changes to this Policy

We may revise this Privacy Policy from time to time. The most current version of the policy will govern our use of your information and will always be at callinthenight.com/legal. By continuing to access or use the Services after those changes become effective, you agree to be bound by the revised Privacy Policy.